Droit international général

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

E. Schollmeyer: The effect of the entry in the domestic register is governed by foreign law: Will the new rules on cross-border divisions work?

One of the most inventive conflict-of-law rules that secondary law of the European Union has come up with, can be discovered at a hidden place in the new Mobility Directive. Article 160q of the Directive assigns the determination of the effective date of a cross-border division to the law of the departure Member State. The provision appears as an attempted clearance of the complicated brushwood of the registration steps of a cross-border division of a company. This article explores whether the clearance has been successful.

F. Fuchs: Revolution of the International Exchange of Public Documents: the Electronic Apostille

The Apostille is of utmost importance for the exchange of public documents among different nations. The 118 states currently having acceded to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents issue, altogether, several millions of Apostilles per year in order to certify the authenticity of public documents emanating from their territory. Some years ago, the electronic Apostille was implemented, which allows states to issue their Apostilles as an electronic document. Interested parties may verify the authenticity of such an electronic document via electronic registers which are accessible on the internet. Whereas Germany has not yet acceded to that new system, 38 other jurisdictions already have done so.

G. Mäsch: Third Time Lucky? The ECJ decides (again) on the place of jurisdiction for cartel damages claims

In three decisions now the ECJ has dealt with the question of where the “place of the causal event” and the “place where the damage occurred” are to be located in order to determine, based on the ubiquity principle enshrined in Article 7(2) of the Brussels Ibis Regulation, the place of jurisdiction for antitrust damages (tort) claims. In this paper the overall picture resulting from the ECJ decisions in CDC Hydrogen Peroxides, flyLAL-Lithuanian Airlines and now Tibor-Trans is analysed. The place of the “conclusion” of a cartel favoured by the ECJ to determine the place of the causal event is not only unsuitable in the case of infringements of Art. 102 TFEU (abuse of a dominant market position), but also in cases of infringement of Art. 101 TFEU (prohibition of cartels). The same criticism applies to the ECJ’s localisation of the place where the damage occurred at the place where the competition is impaired and the victim of the cartel or the abuse of the dominant market position (claimant) sustained the financial loss. In this paper it is suggested to dock the place of the causal event to the actual seat(s) of the cartel offender(s) and the place where the damage occurred exclusively to the affected market.

J. Kleinschmidt: Jurisdiction of a German court to issue a national certificate of succession (‘Erbschein’) is subject to the European Succession Regulation

The European Succession Regulation provides little guidance as to the relationship between the novel European Certificate of Succession and existing national certificates. In a case concerning a German “Erbschein”, the CJEU has now clarified an important aspect of this relationship by holding that jurisdiction of a Member State court to issue a national certificate is subject to the harmonised rules contained in Art. 4 et seq. ESR. This decision deserves approval because it serves to avoid, as far as possible, the difficult problems ensuing from the existence of conflicting certificates from different Member States. It remains, however, an open question whether the decision can be extended to national certificates issued by notaries.

K. Thorn/K. Varón Romero: The Qualification of the Lump-Sum Compensation for Gains in the Event of Death Pursuant to Section 1371 (1) of the German Civil Code (BGB) in Accordance with the Regulation (EU) No. 650/2012

In “Mahnkopf” the CJEU had to decide whether the material scope of application of the Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4/7/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession also covers national provisions which, like Section 1371 (1) of the German Civil Code (BGB), grant the surviving spouse a lump-sum compensation for gains after the death of the other spouse by increasing his or her inheritance. Hence, this was a question of the qualification of Section 1371 (1) BGB, which had been discussed controversially in Germany for a long time and had only been clarified on a national level in 2015. The CJEU decided in favour of a qualification under inheritance law at the level of Union law, and thus took a view which contradicts that of the Federal Court of Justice (BGH) for national conflict of laws. The authors agree with the result of the CJEU but criticise the methodical approach to the implementation of the functional qualification. The article identifies the new questions and problems that will now have to be clarified by the German courts as a result of the CJEU decision and in this context analyses two recent decisions of Higher Regional Courts. The authors note that in the context of Section 1371 (1) BGB, the question of the (temporal) scope of application of the Regulation is likely to become more important in the future, asotherwise, in their opinion, the BGH case law will still have to be considered. Accordingly, in the opinion of the authors, for future German jurisdiction much will depend on whether the BGH adapts its previous case law to that of the CJEU.

P. Mankowski: Recognition and free circulation of names ‘unlawfully’ acquired in other Member States of the EU

The PIL of names is one of the strongholds of the recognition principle. The touchstone is whether names “unlawfully” acquired in other Member States of the EU must also be recognised. A true recognition principle implies that any kind of révision au fond is interdicted. Yet any check on the “lawfulness” or “unlawfulness” of acquiring a certain name abroad amounts to nothing else than a révision au fond.

M. Gernert: Termination of contracts of Iranian business relations due to US sanctions and a possible violation of the EU Blocking Regulation and § 7 AWV

US secondary sanctions are intended to subject European economic operators to the further tightened US sanctions regime against Iran. In contrast, the socalled Blocking Regulation of the European Union is intended to protect European companies from such extraterritorial regulations and prohibits to comply with certain sanctions. In view of the great importance of the US market and the intended uncertainty in the enforcement of US sanctions, many European companies react by terminating contracts with Iranian business partners in order to rule out any risk of high penalties by US authorities. This article examines if and to what extent the Blocking Regulation and § 7 AWV influence the effectiveness of such terminations.

B. Rentsch: Cross-border enforcement of provisional measures – lex fori as a default rule

Titles from provisional measures are automatically recognised and enforced under the Brussels I-Regulations. In consequence, different laws will apply to a title’s enforceability (country of the rendering of the provisional measure) and ist actual enforcement (country where the title is supposed to take effect). This sharp divide falls short of acknowledging that questions of enforceability and the actual conditions of enforcement are closely entangled in preliminary measure proceedings, especially the enforcement deadline under Sec. 929 para. 2 of the German Code of Civil Procedure (ZPO). The European Court of Justice, in its decision C-379/17 (Societ  Immobiliare Al Bosco Srl) refrained from creating a specific Conflicts Rule for preliminary measures and ruled that the deadline falls within the scope of actual enforcement. This entails new practical problems, especially with regard to calculating the deadline when foreign titles are involved.

A. Spickhoff: “Communication torts” and jurisdiction at the place of action

Communication torts in more recent times are mostly discussed as “internet torts”. Typically, such torts will be multi-state torts. In contrast, the current case of the Austrian Supreme Court concerns the localisation of individual communication torts. The locus delicti commissi in such cases has been concretised by the Austrian Supreme Court according to general principles of jurisdiction. The locus delicti commissi, which is characterised by a falling apart of the place of action and place of effect, is located at the place of action as well as at the place of effect. In the event of individual communication torts, the place of effect is located at the victim’s place of stay during the phone call or the message arrival. The place of action has to be located at the sending location. On the other hand, in case of claims against individual third parties, the place of effect is located at the residence of the receiver. The Austrian Supreme Court remitted the case to the lower court for establishing the relevant facts for jurisdiction in respect of the denial of the plaintiff’s claim. However, the court did not problematise the question of so-called “double-relevant facts”. The European Court of Justice, in line with the judicial practice in Austria and Germany, has accepted a judicial review of the facts on jurisdiction only with respect to their conclusiveness.

R. Rodriguez/P. Gubler: Recognition of a UK Solvent Scheme of Arrangement in Switzerland and under the Lugano Conventions

In recent years, various European companies have made use of the ability to restructure their debts using a UK solvent scheme of arrangement, even those not having their seat in the UK. The conditions and applicable jurisdictional framework under which the scheme of arrangement can be recognised in jurisdictions outside the UK are controversial. In Switzerland doctrine and jurisprudence on the issue are particularly scarce. This article aims to clarify the applicable rules of international civil procedural law as well as the requirements for recognition of a scheme of arrangement in Switzerland. It is held that recognition should be generally granted, either according to the 2007 Lugano Convention or, in a possible “no-deal Brexit” scenario, according to the national rules of private international law, or possibly even the 1988 Lugano Convention.

T. Helms: Foreign surrogate motherhood and the limits of its recognition under Art. 8 ECHR

On request of the French Court of Cassation the Grand Chamber of the European Court of Human Rights has given an advisory opinion on the recognition of the legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and its intended mother who is not genetically linked to the child. It held that Art. 8 ECHR requires that domestic law provides a possibility of recognition of a legal parent-child relationship with the intended mother. But it falls within states’ margin of appreciation to choose the means by which to permit this recognition, the possibility to adopt the child may satisfy these requirements.

On 22 June 2020, Parliament and Council negotiators reached a deal on the first EU-wide rules on collective redress.

The new rules introduce a harmonised model for representative action in all member states that guarantees consumers are well protected against mass harm, while at the same time ensuring appropriate safeguards from abusive lawsuits. The new law also aims to make the internal market function better by improving tools to stop illegal practices and facilitating access to justice for consumers.

Background

The Representative Action Directive is a part of the New Deal for Consumers, launched in April 2018 by the European Commission, to ensure stronger consumer protection in the EU. It includes stronger consumer rights online, tools to enforce rights and compensation, penalties for violating EU consumer law and improved business conditions.

The Agreement

The main elements of the agreement are as follows.

1. Each Member State will name at least one qualified entity (an organisation or a public body) that will be empowered and financially supported to launch actions for injunction and redress on behalf of groups of consumers and will guarantee consumers’ access to justice.

2. On designation criteria for qualified entities, the rules distinguish between cross-border cases and domestic ones. For the former, entities must comply with a set of harmonised criteria. They have to demonstrate 12 months of activity in protecting consumers’ interest prior to their request to be appointed as a qualified entity, have a non-profit character and ensure they are independent from third parties whose economic interests oppose the consumer interest;

3. For domestic actions, member states will set out proper criteria consistent with the objectives of the directive, which could be the same as those set out for cross-border actions.

4. The rules strike a balance between access to justice and protecting businesses from abusive lawsuits through the Parliament’s introduction of the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party-

5. To further avoid abusive lawsuits, Parliament negotiators also insisted that courts or administrative authorities may decide to dismiss manifestly unfounded cases at the earliest possible stage of the proceedings in accordance with national law.

6. Negotiators agreed that the Commission should assess whether to establish a European Ombudsman for collective redress to deal with cross-border representative actions at Union level.

7.  The scope of collective action would include trader violations in areas such as data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law.

Next steps

Parliament as a whole and the Council will now have to approve the political agreement. The directive will enter into force 20 days following its publication in the Official Journal of the EU. Member states will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it.

Click here to access the procedure file.

On Tuesday, July 7, the Hamburg Max Planck Institute will host its second monthly virtual workshop in private international law, again in German. Eva-Maria Kieninger (Würzburg) will speak in German about climate change in private international law and procedure, followed by open discussion. All are welcome. More information and sign-up here.

While doing some research on the topic of the application of foreign law (frustrating: nothing has happened at the international level since the issue was given up at the Hague some years ago), I have come across some publications on related topics which I believe deserve attention. One of them is whether there is a human right of public access to legal information; scholars in favor even claim a UN Convention proclaiming it should be adopted .

Thanks to these readings I remembered a case of the European Court of Human Rights which, except I am mistaken, is largely unknown. The judgement, of 6 April 2004, corresponds to application no. 75116/01, Karalyos and Huber v. Hungary and Greece. Hungary was found to have failed to comply with Article 6 ECHR in a case for the compensation of damages: the contents of the foreign applicable law had not been established nine years after the claim was lodged; the proceedings were still pending at an early stage before the Hungarian courts. What is more relevant, the local courts had not taken the approppriate steps to ascertain the contents of the foreign law, nor applied national law instead – a possibility foreseen in section 5 § 1 of Hungarian Law-Decree no. 13 of 1979 on International Private Law.

I suggest you have a look, also on the lengh of proceedings where foreign law is applicable, to  Bekerman v. Liechtenstein, on application no. 34459/10  (although less representative than Karalyos).

I would disclose nothing new by asserting the potential of Article 6 ECtHR in the area. However, to infer a fundamental right of access to legal materials from the case law mentioned above would, to my mind, go too far. On the contrary, some consequences could definitly be drawn regarding the application of foreign law – and not only in Hungary. I am not aware it has happened. It would be great to have feedback, if someone knows better.

— Some readings on access to legal information as a right: Ginevra Peruginelli, ‘Law belongs to the people: access to law and justice’, [2016] 16(2) Legal Information Management 107 – quite short; Leesi Ebenezer Mitee, The Right of Public Access to Legal Information: A Proposal for Its Universal Recognition as a Human Right’ (2017) 18 German LJ 1429 – almost 70 pages.

Acte clair is in the eyes of the beholder, I assume. However a confident judge would have sufficient CJEU authority to help them hold on the A24(1) BIa issues in C‑433/19 Ellmes Property Services in which Szpunar AG opined last week. (No EN version available at the time of publication of this post).

Do actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem? In the negative, is the forum contractus per A7(1)(a) Brussels Ia the location of the property? The less clear issue in my view is the forum contractus element.

The location is Zell am Zee, contested use is, not surprisingly, tourist accomodation. Applicant in the national proceedings is an individual who lives in the apartment building. Defendant is a UK corporation who uses it for short-term lets despite the residential designation assigned to the building as a whole in the co-ownership agreement.

From CJEU authority including C-438/12 Weber v Weber it should be clear that other than the hardcore cases of ownership of real estate, the erga omnes v in personam character of rights in real estate depends on national law. The Advocate General in this respect points out that for the rights of co-owners in the case at issue to be rights in rem, Austrian law would have to be enable them to exercise these rights not just vis-a-vis the other co-owners, but also vis-a-vis third parties such as tenants. Whether this is the case in Austrian law has not been sufficiently explained in the reference, it seems.

For the impact of entry in the land register (where third parties can consult the co-ownership agreement), Szpunar AG reviews and contrasts C‑417/15 Schmidt v Schmidt, and C-630/17 Milivojević v Raiffeisenbank. Mere registration does not always entail erga omnes impact.

The Advocate General reminds us of the overall interpretation of Article 24, including the need for restrictive interpretation, and flags (with reference inter alia to the Handbook, p.73, for which I am, as always, sincerely humbled) that it is not just, or not even so much sound administration of justice which underlies A24. At least partially, Member States’ strategic interests are served by the issues listed in the Article.

Ellmes Property Services does not seem to raise additional issues such as we saw in C-25/18 Kerr. The Austrian courts could have dealt with this on their own, and seeing as the referring judge did not provide the kind of detail for the CJEU to judge, the AG’s suggestion is to leave it up to them to verify the erga omnes character.

That leaves (whether it will be needed depends on what the eventual insight will be on the erga omnes element), the forum contractus under A7(1). Parties differ as to the qualification of the contractual duty: is it a positive one (do!) or a negative one (must not!). The AG opts for the latter, with reference to CJEU 14/76 De Bloos: A7(1) refers to the contractual obligation forming the basis of the legal proceedings. I find the precedent value of De Bloos problematic in light of the many changes that have been made to Article 7 since, and in light of the engineering possibilities it hands to parties.

The AG advises that forum contractus will have to be determined by the Italian judge following the conflicts method per CJEU 12/76 Tessili v Dunlop, with little help from European harmonisation seeing i.a. as the initial co-ownership agreement dates back to 1978.

I am curious to see how far the Court will go in entertaining the issues at stake.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.6.1 (cited by the AG) and Heading 2.2.11.1.

Aaron D. Simowitz (Willamette University College of Law) has posted Convergence and the Circulation of Money Judgments on SSRN.

The abstract reads:

For half a century at least, the several states of the United States have taken a liberal attitude toward the recognition and enforcement of foreign country money judgments. The U.S. Supreme Court invoked the “grace” of sovereign nations to justify a restrictive approach to the recognition of judgments in the famous case of Hilton v. Guyot. The New York Court of Appeals laid out a more generous approach based in the vindication of private rights. Simply put, private rights won. In 1962, the Uniform Law Commission promulgated the Uniform Foreign Money-Judgments Recognition Act, which codified a liberal approach to the cross-border circulation of money judgments. The many U.S. states that adopted the uniform act were trying to lead by example. The hope was that, if they accepted incoming judgments, judgments exported to the rest of the world would be accepted, recognized, and enforced. For decades, this effort was regarded as a failure. The European Union continued to draw a sharp distinction between E.U. judgments and U.S. judgments—though acceptance of U.S. judgments by E.U. member states crept up over time. Some of the world’s largest economies—most notably, China—outright rejected recognition of U.S. money judgments.

Change has been recent and dramatic. In 2017, a Chinese court recognized and enforced a U.S. money judgement for the first time. Chinese law requires reciprocity between nations in order to recognize a foreign money judgment. The United States has no reciprocal judgment recognition treaty with any country. A U.S. district court recognized and enforced a Chinese judgment in 2009. This “reciprocity in fact” was sufficient for a Chinese court. A few months later, China announced that it would sign The Hague Convention on Choice of Court Agreements (“COCA”), obligating Chinese courts to recognize and enforce judgments rendered under a choice of court clause selecting the courts of any contracting state. The COCA has already entered into force between the European Union, Mexico, and Singapore. The United States has signed, but not ratified, the agreement. Meanwhile, The Hague Judgments Project gathers steam to require the free circulation of judgments arising in all but a few contexts. The drivers of this apparent convergence are obscure and likely diverse. This Article will analyze the causes of this recent, dramatic shift and will attempt to assess the likelihood of further convergence.

The paper is forthcoming in the Southern California Law Review.

According to the judgment in Blijdenstein, delivered by the Court of Justice in 2004, a public body which seeks reimbursement of sums paid under public law to the original maintenance creditor, to whose rights it is subrogated against the maintenance debtor, cannot rely on Article 5(2) of the Brussels Convention. It cannot, therefore, sue the debtor before the courts for the place of domicile/habitual residence of the original maintenance creditor.

In 2009, the EU legislator adopted the Maintenance Regulation. As it follows from Article 68 of this Regulation, it replaced the provisions of the Brussels regime relating to maintenance obligations. The Regulation contains a provision that seems to be somehow similar to Article 5(2) of the Brussels Convention. Its Article 3(b) allows to bring the proceedings in matters relating to maintenance obligations before the court for the place where the creditor is habitually resident.

Is that similarity sufficient to justify faithful application of interpretation provided in the judgment in Blijdenstein in relation to the provisions of the Maintenance Regulation? This is, in essence, the question at stake in the case WV, C-540/19. This Thursday, 18 June 2020, Advocate General Campos Sánchez-Bordona presented his Opinion in which he addresses that question.

Facts of the case and the question referred

In proceedings before a German court, a social assistance institution being a public body asserts claims for parental maintenance against the defendant who lives in Austria. The public body contends that the parental maintenance claim has been transferred to that body because it regularly granted the defendant’s mother social assistance benefits. Indeed, the defendant’s mother lives in Germany where she receives regular social assistance. The defendant submits that the German courts lack international jurisdiction.

In line with the submission of the defendant, the first instance considers that the German courts have no international jurisdiction. It argues that jurisdiction under Article 3(b) of the Maintenance Regulation is excluded because the creditor within the meaning of that provision is only the maintenance creditor itself, and not a state body asserting maintenance claims legally transferred to it by way of recovery. The second instance court disagrees and, ultimately, the German Supreme Court (Bundesgerichtshof, BGH) decides to refer a request for a preliminary ruling to the Court of Justice. It submits a following question:

Can a public body which has provided a maintenance creditor with social assistance benefits in accordance with provisions of public law invoke the place of jurisdiction at the place of habitual residence of the maintenance creditor under Article 3(b) of the Maintenance Regulation in the case where it asserts the maintenance creditor’s maintenance claim under civil law, transferred to it on the basis of the granting of social assistance by way of statutory subrogation, against the maintenance debtor by way of recourse?

Advocate General’s Opinion…

In his Opinion, Advocate General proposes to answer the preliminary question in the affirmative. In his view, Article 3(b) of the Maintenance Regulation can be relied on by a public body who contends that it has subrogated the original maintenance creditor.

At point 34, the Opinion recalls the judgment in Blijdenstein and explains that the Court held in its judgment, in essence, that a maintenance creditor is regarded as the weaker party in the proceedings in matters relating to maintenance obligations and therefore that creditor can rely on a rule of jurisdiction which derogates from this general principle of actor sequitur forum rei. The original maintenance creditor could therefore rely on Article 5(2) of the Brussels Convention. A public body which brings an action for recovery against a maintenance debtor is not in an inferior position with regard to the latter and it cannot bring its actions before the courts that would otherwise have jurisdiction under Article 5(2) of the Brussels Convention.

However, Advocate General develops a series of arguments in support of non-application of the interpretation provided for in the judgment in Blijdenstein within the framework established by the Maintenance Regulation.

First, at points 37 to 42, the Opinion lays down some arguments of systemic interpretation and stresses that the Maintenance Regulation establishes a complete system: while the Brussels regime is in principle not applicable in relation to the third-State defendants, the circumstance that the defendant is habitually resident in a third State does not entail the non-application of the Maintenance Regulation. If the public bodies could not rely on Article 3(b) of the Maintenance Regulation, the complete character of the system established by the Regulation would be affected. In all the scenarios where the debtor is a third-State defendant, a public body would most likely have to assert its claim before the courts of that third-State.

Next, at points 43 to 45, the Opinion adds that unlike in the Brussels regime, under the Maintenance Regulation the place of jurisdiction at the habitual residence of the maintenance creditor is conceptualized not as an exception, but as an alternative general place of jurisdiction.

Then, at points 46 to 47, the Opinion elaborates on the judgment in R. At paragraph 30 of this judgment, it is stated that the objective of the Maintenance Regulation consists in preserving the interest of the maintenance creditor, who is regarded as the weaker party in an action relating to maintenance obligations; Article 3 of that Regulation offers that party, when it acts as the applicant, the possibility of bringing its claim under bases of jurisdiction that do not follow the actor sequitur forum rei principle. In his Opinion, Advocate General emphasizes that the formulation of paragraph 30 of the judgment in R must have been influenced by the factual context of that case. It should not, however, be understood as preventing the public bodies from relying on some specific grounds of jurisdiction of Article 3.

After that, at point 51, the Opinion has recourse to an argument based on historical interpretation: even though a proposal endorsing a solution according to which a public body could bring action only before the courts for the place of habitual residence of the defendant was brought up during the drafting of the Maintenance Regulation, that proposal is not reflected in its final version.

Finally, at points 54 to 60, the Opinion addresses the objectives of the Maintenance Regulation. In particular, at point 59, Advocate General points out that Blijdenstein case law should be discontinued as it seems to contradict the logics of the Regulation – it does not reinforce the protection of the maintenance creditor. In fact, it favors the maintenance debtors once the maintenance of a creditor is covered by the payments of the public body: the debtor is no longer at risk of being sued before the courts of a Member State other than the Member State of his habitual residence.

… and insights on the lessons that may be learned from it:

The above presentation of the arguments developed by Advocate General in his Opinion is far from being extensive. It is best to recommend giving it an attentive lecture as there is much more to bite into. In addition to that, the Opinion raises some arguments that may be relevant in other contexts than that of the case WV, C-540/19.

continuity / adequacy of case law and its reversals

As mentioned before, the Opinion is structured around the question whether Blijdenstein case law should be still applied despite the modification of legal framework. It is interesting to note that, at point 69, the Opinion even anticipates a scenario in which the Court would decide not to follow the proposal of Advocate General. In this context, Advocate General puts forward some modifications that, according to him, should be introduced into the Blijdenstein case law.

The importance of the debate that this question may inspire extends far beyond the scope of the case reported here. When it comes to the interpretation of EU private international law instruments, what factors should be taken into account in assessing whether a pre-existing case law should be reversed? 

coordination between forum and ius

At points 61 to 66, the Opinion offers an additional argument in favor of discontinuation of Blijdenstein and allowing the public bodies to sue before the courts for the place of the creditor’s habitual residence. It argues that the interpretation proposed in the Opinion allows to ensure coordination between forum and ius – a court having jurisdiction under the Maintenance Regulation will, as far as possible, apply its own law.

In fact, since Blijdenstein times, not only the instrument containing the rules on jurisdiction in matters relating to maintenance obligations has changed. The legal landscape was profoundly altered by the common conflict of laws rules of the Hague Protocol on the Law Applicable to Maintenance Obligations. Under the general rule on applicable law of Article 3(1) of the Protocol, obligations shall be governed by the law of the State of the habitual residence of the creditor. As the Opinion notes, according to Article 64(2) of the Maintenance Regulation, a right of a public body to act in place of an individual to whom maintenance is owed or to seek reimbursement of benefits provided to the creditor in place of maintenance shall be governed by the law to which the body is subject. In most instances, a public body subrogating the original maintenance creditor is arguably established in the Member State of that creditor’s residence.

It seems that a similar point has been already tackled in the judgment in Kainz. At paragraph 20, it addresses the question relating to the necessity to ensure coordination between, on the one hand, jurisdiction to settle a dispute on the liability for damage caused by a product [under Article 5(3) of the Brussels I Regulation] and, on the other hand, law applicable to a non-contractual obligations arising to such damage [under Article 5(1) of the Rome II Regulation]. In the judgment in Kainz, that question is answered in the negative.

Yet, the Maintenance Regulation/the Hague Protocol duo seem to follow different logics than the aforementioned Regulations. There must have been a reason to extract the rules on jurisdiction in matters relating to maintenance from the Brussels regime and adopt a new Regulation.

It is true that the Protocol does not set a general rule according to which the maintenance obligation is governed by the law of the forum. As it follows from Article 3(1), it relies heavily on the law for the place of the creditor’s habitual residence.

However, one the one hand, even with its general rule on applicable law of Article 3(1), it can be argued that the Protocol does indirectly promote a coordination between ius and forum. That is the case as long as one accepts that, in practice, the application of the rules of jurisdiction of the Maintenance Regulation leads to the conferral of jurisdiction to the courts for the place of the creditor’s habitual residence (see, to that effect, paragraph 49 of the judgment in KP). On the other hand, as the Opinion remarks at its footnote 47, at least in some scenarios where it would reinforce the situation of the maintenance creditor, the Hague Protocol provides for a subsidiary application of the law of the forum. According to Articles 4(2) and (3) of the Protocol, the law of the forum applies when the creditor is ‘unable to obtain maintenance’ under the law primarily applicable to the maintenance obligation.

Moreover, striving to ensure that a court applies its own law somewhat echoes Recital 27 of the Succession Regulation. As a reminder, this Recital explains, inter alia, that the Regulation is devised so as to ensure that the authority dealing with the succession will, in most situations, be applying its own law.

At point 61 of the Opinion, Advocate General himself qualifies his argument drawn from the existence of the Maintenance Regulation/the Hague Protocol duo as being of a lesser theoretical importance, yet having practical bearing. However, the argument provokes also a more general question: to what extent the coordination of ius and forum is – and if so, in which constellations – a point of consideration in EU private international law? 

 

The Opinion is available in Spanish [original language] and, inter alia, in German and French. There is not English version yet.

 

Erasmus School of Law (Erasmus University Rotterdam) is recruiting five researchers (two postdocs, two PhDs and one parttime associate/endowed/full professor) for the research project Affordable Access to Justice: towards sustainable cost and funding mechanisms for civil litigation in Europe. 

This five year project is funded by the Netherlands Organisation for Scientific Research (NWO), and led by Prof. Xandra Kramer. This five year project will assess new pathways to civil justice funding and cost schemes, with a view to developing a balanced financing system securing access to justice in Europe. It builds onto the ongoing ERC consolidator project Building EU Civil Justice: challenges of procedural innovations – bridging access to justice.

Please contact Xandra Kramer (kramer@law.eur.nl) for more information on the project, and see Vici vacancies 2020 for for the vacancy descriptions, application requirements and procedure. You can apply here till 17 July 2020.

 

By Olivia Tambou

On 12-14 October 2020, the 2nd international Open Search Symposium (OSSYM 2020) will be hosted by the CERN (Geneva). The event is organised by the Open Search Foundation, which militates for the creation of an independent, free and self-determined access to information on the Internet.

You may participate to the Symposium in different ways: with scientific papers, sharing of practical experiences or by introducing concepts and positions during presentations and in the different interactive sessions. Full papers and abstracts presented at the OSSYM 2020 will be published in online proceedings following the event. Interested contributors should send their extended abstract (1 page) or full paper (4-6 pages) for any poster or oral presentation until 6 July 2020 at the following address: https://indico.cern.ch/e/ossym-2020.

Key legal questions to be addressed in the context on the Symposium could be: Competition law, data security/cybersecurity law, General Data Protection Regulation, ePrivacy Regulation, national vs. European law, Private international law, EU copyright legislation, liability, traceability of intellectual property rights and ownership by individuals, organisations and SMEs/corporates, data governance issues, as well as the fairness of digital platform and more globally fundamental rights issues including freedom of expression and protection against hate speech, and interaction with future rules on European digital single market, etc.

Note that the Symposium will be held either at physical meeting or as web-based conference (the final decision is to be taken in July). Registration will open on 16 July 2020 and close on 28 September 2020 (or when maximum number of participants is exceeded).

More information on this event is available here.

In Alexander Brothers Ltd (Hong Kong SAR) v Alstom Transport SA & Anor [2020] EWHC 1584 (Comm) Cockerill J discussed inter alia (at 177 ff) the impact of EU law on the ordre public assessment for potential refusal of recognition of an arbitral award under section 103 of the 1980 New York Convention.

CJEU authority are C-126/ 97 Eco Swiss (concerning EU competition law) and C-168/ 05 Claro (unfair terms in consumer contracts). At 183 Cockerill J does not suggest the CJEU authority should no longer stand. Indeed she suggests obiter that there is no reason to suggest the CJEU’s line of reasoning should not apply to wider issues than just competition law or consumer law. However, the burden of proof of showing that particular parts of EU law are of a nature to justify the ordre public exception, lies upon the party objecting to recognition. In casu Alstom have fallen short of that duty. Yes, there is scant reference to anti-corruption in the private sector; and yes there is EU money laundering law. However (at 186) ‘the EU has, in general terms, set its face against corruption. But aside from the area of money laundering it has not put in place mandatory laws or rules. In the context of international corruption of the kind in focus here it has left it to the individual member states to adopt what measures seem good to them. There is, in short, no applicable mandatory rule or public policy.’

An interesting discussion.

Geert.

Application for refusal of #arbitration award under New York Convention section 103: ordre public. Alternatively, issue estoppel, or failure of full and frank disclosure: all dismissed.
Cockerill J discussing ia C-126/ 97 Eco-Swiss. https://t.co/YF0dB6lVah

— Geert Van Calster (@GAVClaw) June 18, 2020

AG Manuel Campos Sánchez-Bordona delivered yesterday his opinion in case C‑540/19 (WV v Landkreis Harburg), which is about the Maintenance Regulation. Should the opinion be endorsed by the Court of Justice, the decision will be of great practical importance. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version:

« L’article 3, sous b), du règlement (CE) no 4/2009 […] doit être interprété en ce sens qu’un organisme public qui a fourni des prestations d’aide sociale à un créancier d’aliments et qui s’est subrogé légalement dans la créance alimentaire peut réclamer cette dette à la personne qui est tenue de la payer, au moyen d’une action récursoire, devant les juridictions de l’État où le créancier a sa résidence habituelle ».

Source : here

AG Szpunar delivered yesterday his opinion in case C‑433/19 (Ellmes Property Services Limited v SP), which is about Brussels I bis. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version:

« 1) L’article 24, point 1 [Bruxelles I bis] doit être interprété en ce sens qu’une action d’un copropriétaire tendant à la cessation de l’usage touristique d’un appartement par un autre copropriétaire, au motif que cet usage ne correspond pas à celui convenu dans le contrat de copropriété, ne relève de cette disposition que si cet usage est opposable à l’égard de tous. Il appartient au juge national d’effectuer les ultimes vérifications à cet égard.

2) L’article 7, point 1, sous a), de ce règlement doit être interprété en ce sens que, dans le cas où l’usage convenu dans le contrat de copropriété n’est pas opposable à l’égard de tous, une telle action relève de la notion de « matière contractuelle » au sens de cette disposition. Dans ces conditions, l’obligation contractuelle litigieuse consiste en une obligation de ne pas faire et, plus précisément, de ne pas modifier, d’une manière non conforme au contrat de copropriété, l’affection d’un bien dans le lieu où celui-ci se situe. Pour vérifier si le lieu d’exécution de cette obligation correspond au lieu où se situe l’appartement soumis au régime de copropriété, il appartient au juge national de déterminer ce lieu d’exécution conformément à la loi régissant cette obligation, selon les règles de conflit de la juridiction saisie ».

Source : here

On 28 May 2020, the German Federal Court of Justice (BGH) decided to refer a question for a preliminary ruling to the ECJ regarding Articles 80 and 84 of the General Data Protection Regulation (GDPR). The case, brought by consumer protection groups, is about the alleged violation, by the operator of a social network, of the obligation to inform users about the scope and purpose of the collection and use of their data.

Background

The Irish-based defendant, Facebook Ireland Limited, operates the “Facebook” social network. On the internet platform of this network there is an “app center” in which the defendant makes free online games of other providers accessible to the users of its platform. In November 2012, several games were offered in this app center, for which the following information could be read under the button “Play now”: “Clicking on Play game above gives this application: your general information, your email address, about you, your status. This application may post on your behalf, including your score and more.” In one game, the notice ended with the phrase: “This application may post information on your status, photos, and more on your behalf”.

The plaintiff is the umbrella organization of the consumer centers of the Federal states. It claims, among other, that the presentation of the information under the “Play now” button in the app center is improper, including from the point of view of the legal requirements for obtaining effective data protection consent from the user. It considers itself entitled to enforce injunctive relief by bringing an action before the civil courts in accordance with the relevant German rules on unfair competition and consumer protection.

In the first instance, the district court ordered the defendant to refrain from presenting games on its website in an app center in such a way that users of the internet platform, by clicking a button such as “play game”, allow the game operator to use personal data stored there, and is authorized to transmit (post) information on behalf of the user (LG Berlin, 28 October 2014, 16 O 60/13). The defendant’s appeal was unsuccessful (Kammergericht Berlin, 22 September 2017, 5 U 155/14). The defendant has filed a second appeal with the BGH.

The question

The question referred to the ECJ focuses on whether the criteria set out in Chapter VIII of the GDPR, in particular in Article 80(1) and (2) and in Article 84(1), conflict with national rules granting to competitors and associations, institutions and bodies authorized under national law, the right to sue before the civil courts for infringements under the GDPR regardless of the violation of specific rights of individual data subjects, and without any mandate from a data subject.

This question is controversial in the case law of the lower courts and in legal literature. Some consider that the GDPR contains a final regulation for the enforcement of the data protection provisions made in this Regulation, and that associations are therefore only authorized to bring proceedings under the conditions of Article 80 of the GDPR (which have not been met in the case at hand). According to others, the GDPR is not exhaustive, hence associations continue to be authorized to try and enforce injunctive relief in case of an alleged violation of personal data protection rules, independently of any infringement of specific rights of individual data subjects, and without the need of a mandate from a data subject.

The Court of Justice ruled in Fashion ID that the provisions of Directive 95/46/EC (the Data Protection Directive), which was in force until the General Data Protection Regulation became applicable on 25 May 2018, do not preclude associations from having legal standing. However, this decision does not indicate whether this right to bring an action remains in force under the GDPR.

Henshaw J in  DVB Bank SE v Vega Marine Ltd & Ors [2020] EWHC 1494 (Comm) (a substantively straightforward case on sums loaned) made some important observations on the benefits of summary judgment as opposed to a default judgment in the context of recognition and enforcement.

This a few days before publication of the thesis of Vincent Richard on the very topic.

There is no doubt the English courts have jurisdiction per a valid choice of court clause under A25 BIa. Claimants are pressing for summary judgment, citing

• Brexit. The Withdrawal Agreement extends EU law in civil procedure to proceedings issued before the end of the transition period, however claimants express anxiety over the speed of Greek enforcement proceedings given courts’ shutdown in the Covid19 era. At 61: ‘Greek counsel has advised the Claimants that the Greek courts shut down earlier this year for an indefinite period, so that obtaining an enforcement order in Greece would be likely to be delayed;’.
• More crucially however, Henshaw J notes at 61, correctly, that even under BIa, default judgments are more vulnerable:

there is a risk that an enforcement order based on a simple default judgment, even if obtained before 31 December 2020, might be set aside on public policy grounds. Greek counsel advised that the Greek courts would be much less likely to refuse to recognise and enforce a reasoned English judgment following a hearing on the merits.

Summary judgment was given against the defendants.

Geert.

Summary judgment granted.
Hanshaw J holding ia that for enforcement purposes both before and after Brexit (ordre public arguments in State of enforcement), summary judgment is to be preferred over default judgment. https://t.co/iS9Jhgjdp8

— Geert Van Calster (@GAVClaw) June 10, 2020

Today, AG Szpunar delivered his Opinion in the case of Ellmes Property Services, C-433/19, on the interpretation of Article 24(1) and Article 7(1)(a) of the Brussels I bis Regulation. This case arose from the following facts:

Both parties are co-owners of a house situated in Zell am See, Austria. The applicant, who is the owner of apartment No 10, has his home address at this location. The defendant company, which is the owner of apartment No 20, has its registered office in the United Kingdom. It uses its apartment, which was designated for residential purposes, for tourist purposes by regularly letting it out to holiday guests.

In his action brought before the Bezirksgericht Zell am See (District Court, Zell am See), Austria, the applicant seeks to prevent the use of the apartment for tourist purposes, contrary to its designated use and arbitrarily in the absence of consent of the other co-owners, which interferes with the applicant’s rights of co-ownership. He relied on the jurisdiction referred to in the first alternative in the first subparagraph of Article 24(1) of the Brussels Ia Regulation. The defendant objected on the basis of the lack of local and international jurisdiction.

The court of first instance declined local and international jurisdiction. In its view, the dispute relating to a private-law use agreement between co-owners did not directly concern their rights in rem. The court of second instance allowed the applicant’s appeal and rejected the defence of lack of local and international jurisdiction. It held that the designated use of a property subject to co-ownership was based on the private-law agreement between the co-owners (usually laid down in the co-ownership agreement). The designation for a specific use and the adherence to the use thus defined was one of the absolutely protected rights in rem of a co-owner. The defendant lodged an appeal with the Austrian Oberster Gerichtshof (Supreme Court) against that decision.

In this context, the Austrian Supreme Court referred to the ECJ the following questions:

(1) Is the first alternative in the first subparagraph of Article 24(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels Ia Regulation’) to be interpreted as meaning that actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem?

(2) If the first question should be answered in the negative:
Is Article 7(1)(a) of the Brussels Ia Regulation to be interpreted as meaning that the actions referred to in paragraph 1 concern contractual obligations to be performed at the location of the property?

AG Szpunar, after scrutinizing the conditions, relevant case law and the purpose of Article 24(1), held that the application of that provision requires a right in rem which in turn necessitates an erga omnes effect of the underlying legal relationship of the co-owners regulating the modalities of the use of that co-ownership. Whether there was such an erga omnes effect in the concrete case at hand is to be determined by the national court according to the applicable national law. If there is no erga omnes effect, Article 7 (1) (a) will have to be applied to the applicant’s claim in question. This would mean that the national court will have to resort to the law governing that claim in order to determine its place of performance.

The Opinion is available in French [original language] and, inter alia, in German but not yet in English.

 

 

The University of Rijeka, Faculty of Law announced a call for application to the newly opened position of assistant, funded by the Croatian Science Foundation. It is a full-time position for the duration of the project (approximately 4 years) which is focused on research rather than teaching. The candidate will be expected to complete the doctoral studies conducing research on the various aspects of cross-border enforcement in EU under the mentorship of Professor Ivana Kunda, the Head of the Chair of International and European Private Law. Good command of English is required as well as certain level of Croatian. The call was announced yesterday and remains opened for 30 days.

The details of the call are available here, and questions could be addressed to ikunda@pravri.hr.

In Senior Taxi Aereo Executivo LTDA & Ors v Agusta Westland S.p.A & Ors [2020] EWHC 1348 (Comm) Waksman J discusses the same issues which I analysed in my review of Sabbagh v Koury (and he refers to that case at 51 ff). Proceedings arise out of the fatal crash of an Agusta Westland AW 139 twin turbine helicopter on 19 August 2011, during a flight from the Petrobras P-65 offshore oil platform in the Atlantic, west of Rio de Janeiro, to Macae Aerodrome in Brazil.

First and third defendant are an Italian company. Second defendant, AgustaWestland Ltd is an English company and the anchor defendant per A8(1) Brussels IA. At 32:

‘Defendants’ contention is that in order for Article 8 (1) to apply at all, the claim against the anchor defendant must at least be a sustainable one. I described this as “the Merits Test”. For present purposes, the requirement of sustainability can be equated with “viability”, “a real prospect of success”, a “serious issue to be tried” or a “good arguable case”. Neither party sought to argue that any fine point of distinction between these various expressions was relevant here.’

Reisch Montage and Freeport of course are CJEU authority referred to. As is Kolassa for the CJEU consideration of ‘merits review’ (particularly there: taking account of both defendant and claimant’s arguments) under A25 and A26 BIA) and CDC for the CJEU’s most recent proper discussion of the issue (at 86 Waksman J suggest CDC is not a ruling on the merits issue).

At 65 ff Waksman J follows the majority in Kabbagh, and not the dissent of Lady Justice Gloster – I as noted was more enclined to agree with her. Having confessed to his preference for there being a merits test, he then seeks to distinguish the CJEU in Reisch by focusing on the CJEU there finding on the basis of a ‘procedural bar’ in the Member State of the anchor defendant. At 83:

‘I do not find the reasoning of the CJEU here persuasive and I consider that the decision should be distinguished if possible. It can be distinguished because it is very clear from the judgments that the focus was on a national rule as to admissibility of the claim. Even allowing for differences of language, the expression “procedural bar” is not apt to include a lack of any substantive merit. Reisch is not therefore an obstacle to deciding that there is a Merits Test.’

And at 85:

‘that the reasoning of the court in Reisch was concerned more with what it simply saw as an illegitimate incursion of a domestic procedural rule (a bankrupt cannot without more be sued in ordinary litigation) into the operation of Article 6 (1). That, in and of itself decided the point. It was a question of form and not substance. But the Merits Test is a matter of substance.

Held: there is a Merits Test which must be satisfied before A8(1) can be invoked. That merits test is not met in casu.

A8(1)’s ‘so closely connected’ test clearly requires some appreciation of the facts and the legal arguments, as well as a certain amount of taking into account the defendant’s arguments. Yet this in my view does not amount to a merits test, and ‘sustainability’, “viability”, “a real prospect of success”, a “serious issue to be tried” or a “good arguable case” may well be synonyms – but there are not the same as an A8(1) merits test.

One to watch upon appeal.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.12.1

Includes challenge of the A8(1)BIa anchor jurisdiction.

Re fatal crash of Agusta Westland AW 139 helicopter on 19 August 2011, during a flight from the Petrobras P-65 offshore oil platform in the Atlantic, west of Rio de Janeiro, to Macae Aerodrome in Brazil. https://t.co/de4okNUMkY

— Geert Van Calster (@GAVClaw) June 13, 2020

On 26 May 2020, the European Commission launched a public consultation on cross-border investment within the EU.

Why this initiative?

First, the Commission is currently working on a new regulatory framework for intra-EU investments in order to make the internal market more attractive for foreign investors. The main objective of the future legislation will be to better protect and facilitate cross-border investments (see communication COM/2020/102, A New Industrial Strategy for Europe).

Second, following the Achmea judgment of the European Court of Justice (Case C-284/16), an agreement for the termination of intra-EU bilateral investment treaties has recently been adopted by a broad majority of Member States. At the same time, many investors but also arbitration practitioners have raised concerns because of this brutal change in the regulatory framework. They principally  invoke the loss of effective enforcement of their rights within the EU.

The main topics of the consultation are as follows: the first section contains some general questions aimed at gaining inputs on respondents’ familiarity with cross-border investments and linked issues; the second seeks feedback from stakeholders on rules to protect intra-EU investments; the third invites views on enforcement of intra-EU investment protection rules, including dispute resolution mechanisms and remedies when issues related to cross-border investments arise; the fourth section contains some general questions to assess the overall EU investment protection framework (as presented in section two and three); the fifth section seeks views of stakeholders on measures to facilitate and promote cross-border investment.

The consultation is open until 8 September 2020 and can be found here.

A short note on Public Joint Stock Company (Rosgosstrakh) v Starr Syndicate Ltd & Ors [2020] EWHC 1557 (Comm) just to illustrate the complications for recognition and enforcement in the absence of a near-automated process such as under Brussels IA (the Hague Judgments Convention is meant to lubricate the process internationally). Claimant applies for summary judgment on its claim for recognition and enforcement of three judgments obtained in its favour in the Russian courts in 2015 and 2016.

Moulder J first discussed the issue of lack of jurisdiction for the Russian courts and she finds at 93 after consideration that the discussions to and fro, and the evidence of Russian experts for each of the parties, necessitates proper discussion with oral evidence of the contractual construction, under Russian law, of the relevant choice of court clauses. Of course under BIa and other regimes operating with a certain amount of mutual trust, second-guessing jurisdiction is not part of the assessment.

Next, the allegations of bias are also discussed, with at 126 ia reference to an interference by President Putin, and at 138 a solid set of reasoning for Moulder J to dismiss the potential for summary judgment on this point, too. Of course bias is an ordre public issue which even under BIa’s rules for recognition of judgments from other Member States, might justify refusal of recognition.

Geert.

 

Application for summary judgment re recognition and enforcement of 3 Russian judgments refused.
I.a. allegations of bias require proper assessment. https://t.co/nfVLicgsQQ

— Geert Van Calster (@GAVClaw) June 17, 2020

 

 

Professor Matthias Lehmann, Chair of Private International and Comparative Law at the University of Vienna (from 1 September 2020), seeks highly skilled and ambitious research fellows (“prae-docs”).

Successful candidates will hold a first law degree from any jurisdiction, possess an excellent command of English, and have a basic knowledge of German. Knowledge of other languages and advanced IT skills are desirable qualities that may be taken into consideration.

One type of position is available in the area comparative and private international law (further details here).

Another type of position is available in the area of international business law, preferably with the candidate having some knowledge or background in banking and capital markets law (further details here).

Fellows are given the opportunity to complete a PhD or conduct post-doctoral research in accordance with the Faculty’s regulations. Other responsibilities include teaching, and supporting Professor Lehmann in his work at the Chair.

The positions involve 30 hours per week, of which 10 hours are set aside for the individual PhD project, and are remunerated according to the Austrian public salary scale (c. 2.200 Euro gross per month, rising to 2.600 Euro after 3 years). Contracts are for an initial term of four years, with a flexible early termination option for the candidate.

Applications (including a covering letter in German or English, a cv, and relevant diploma) should be submitted via the University of Vienna’s Job Centre portal (http://jobcenter.univie.ac.at) no later than 6 July 2020. Please include reference number 10950 for the specialisation in private international law and/or reference number 10951 for the specialisation in international business law. Questions about the positions can be addressed to matthias.lehmann@univie.ac.at.